Recommending a Title IX Loophole

WASHINGTON – The U.S. Department of Education should encourage colleges and universities to use what has in the past been a controversial method to determine whether their athletics programs are in compliance with Title IX of the Education Amendments of 1972, a federal panel urged in a report released Thursday.

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WASHINGTON – The U.S. Department of Education should encourage colleges and universities to use what has in the past been a controversial method to determine whether their athletics programs are in compliance with Title IX of the Education Amendments of 1972, a federal panel urged in a report released Thursday.

In its recommendations, the U.S. Commission on Civil Rights endorses the department’s “model survey” – an e-mailed or Web-based questionnaire issued by the Office for Civil Rights in 2005 – as “the best method available” to show that an institution is “fully and effectively” meeting the needs of the gender that is underrepresented in its intercollegiate athletics offerings. The survey has been criticized as an option that sets back equity for women in college sports.

The recommendations were approved by four members of the commission, while one member abstained from voting and three others were absent for the vote. Of those who were absent, two -- Arlan D. Melendez and Michael Yaki -- co-wrote a rebuttal to the conclusions. "[B]ecause the process was biased, faulty, and inadequate," they wrote, "it was inevitable that the outcome is misleading."

Before the release of the model survey, colleges had little guidance on how to demonstrated that they were accommodating the underrepresented gender (usually women), the third prong of the so-called “three-pronged test” of Title IX compliance. It is an alternative if an institution has neither percentages of female and male athletes that are proportionate to its overall enrollment, nor a history and continuing practice of expanding offerings for the underrepresented gender.

In a letter prefacing the report addressed to President Obama and Congressional leaders (each of whom is responsible for appointing four commissioners; most of the current commissioners are Bush-era appointees), the commission chair Gerald A. Reynolds wrote that the survey was “the best method for attaining prong three compliance because it provides a reliable and rigorous method of ascertaining student interest in athletics.”

Melendez and Yaki countered that the survey "is far from rigorous and suffers from many substantive and methodological flaws," which they detailed in their rebuttal.

Heading off criticism about persistent gender disparities, the report suggests that "since female students are fully capable of expressing interest in athletics, or lack thereof, advocates for particular views on Title IX compliance should not devalue or dismiss their perspectives."

The commission also recommends that regulations be revised "to explicitly take into account the interest of both sexes rather than just the interest of the underrepresented sex." It adds: "This would help to restore Title IX to its original goal of providing equal opportunity for individuals of both sexes."

In their rebuttal, Melendez and Yaki assailed "a misguided belief that men’s athletics have suffered due to the expansion of programs for women ... this is not only not true, but substantial disparities still exist which disfavor women."

A lawyer who testified before the commission, Daniel A. Cohen, of the law firm Kasowitz Benson Torres & Friedman, said in an interview that the surveys “potentially present schools with an objective, cost-effective alternative” to revamping their athletics programs. He stressed that “the key really is proper administration including generating a high response rate.”

In 2005, Marcia D. Greenberger, the co-president of the National Women’s Law Center, called it “simply an underhanded way to weaken Title IX and make it easy for schools that aren't interested in providing equal opportunity for women to skirt the law.”

Other women’s advocates were similarly critical of the move, as was Myles Brand, the late president of the National Collegiate Athletic Association. “The e-mail survey suggested in the clarification will not provide an adequate indicator of interest among young women to participate in college sports,” he said in 2005, “nor does it encourage young women to participate -- a failure that will likely stymie the growth of women’s athletics and could reverse the progress made over the last three decades.”

In its recommendations, the commission suggested that the NCAA "reconsider its objection" to the model survey.

Use of surveys based on the OCR’s model hasn’t been widely reported, but that doesn’t mean colleges haven’t used them, Cohen said. “This is a highly politicized area, so schools don’t make their compliance efforts public.”